Jagat Narayan, J.
1. This is a revision application by one of the defendants against an order of the executing Court dismissing his application purporting to be under Section 3(1) of the Partition Act 1893.
2. Bhjkam Chand respondent No. 1 instituted a suit for the partition of two properties. -- one measured about 167 sq. yds. and referred to as house and the other measured about 57 sq. yds and referred to as a Bara. It is not disputed that the share of Bhikam Chand in these properties is 3/5th, the share of Ram Gopal applicant is 1/5th and the remaining 1/5th is owned by Karnidan, Ram Kishan and Jaikishan. In para 9 of the plaint it was alleged by the plaintiff that the Bara was indivisible and it was prayed that it may be auctioned amongst the co-sharers. Further it was stated that if the Court was of the opinion that the bigger property was also indivisible that may also be sold by auction amongst the sharers. In para 9 of the written statement Ram Gopal defendant admitted that the smaller property was Indivisible and agreed that it should be sold by auction amongst the co-sharers. He alleged that the bigger property was also indivisible and should also be sold by auction amongst the co-sharers. The trial Court sold the smaller property to Karanidan, Ramkishan and Jai Kishan respondents who were directed to pay Rs. 27 /- by way of compensation to the other co-sharers. It held that the bigger property was divisible and directed its division by metes and bounds. Bhikam Chand preferred an appeal against this decree. The appellate Court held that the bigger property was indivisible and directed its sale by auction amongst Bhikam Chand and Ram Gopal. Against that decree Ram Gopal has preferred a second appeal which is pending.
3. Bhikam Chand applied for the execution of the decree of the appellate Court dated 3-4-62. Bam Gopal filed an application purporting to be under Section 3(1) of the Partition Act that the Court should order a valuation of the property and should sell it to him. This application was rejected and Ram Gopal has preferred the present revision application against that order. A number of preliminary objections were taken on behalf of Bhikamchand. It is however not necessary to decide them as in my opinion the application of Ram Gopal was rightly rejected.
4. Bhikam Chand filed an application in the trial Court on 27-5-61 in which he alleged that both the properties were indivisible and they should be sold by auction amongst the co-sharers. The contention on behalf of Ram Gopal is that this application was an application under Section 2 of the Partition Act and as sale has 'not yet taken place he is entitled to make an application under Section 3(1) of the Partition Act. Reliance is placed on Nitish Chandra v. Promode Kumar, AIR 3953 Cal 18.
5. The contention on behalf of Bhikam Chand is that his application was not under Section 2 of the Partition Act as he did not ask for a public auction of the properties but prayed that they may be sold by auction amongst the co-sharers. Reliance is placed on Ram Prasad v. Mt. Mukandi, AIR 1929 Cal 443 and Mohit Krishna v. Pranab Chandra, AIR 1930 Cal 616. Sections 2, 3 and 6 of the Partition Act run as follows:
Section 2 'Whenever in any suit for partition to which if instituted prior to the commencement cf this Act, a decree for partition might have been made it appears to the Court, that, by reason of the nature of the property to which the suit relates, er of the number of the share-holders therein or of any other special circumstances, a division of the property cannot reasonably or conveniently be made, and that, a sale of the property and distribution of the proceeds would be more beneficial for all the share-holders, the Court may, if it thinks fit, in the request of any such share-holders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds.
Section 3 '(1) If, in any case in which the Court is requested under the last foregoing section to direct at sale, any other share-holder applies for leave to buy at a valuation the share or shares of the party or parties asking for sale, the Court shall order a valuation of the share or shares in such manner as it may think fit and offer to sell the same to such share-holder at the price so ascertained and may give all necessary and proper directions in this behalf.
(2) If two or more share-holders severally apply for leave to buy as provided in Sub-section (1), the Court shall order a sale of the share or shares to the share-holder who offers to pay the highest price above the valuation made by the Court.
(3) If no such share-holder is willing to buy such share or shares at the price so ascertained, the applicant or applicants shall be liable to pay all costs of or incidental to the application or applications.
Section 6 '(1) Every sale under Section 2 shall be subject to a reserved bidding and the amount of such bidding shall be Fixed by the Court in such manner as it may think fit and may be varied from time to time.
(2) On any such sale any of the share-holders shall be at liberty to bid at the sale on such terms as to non-payment of deposit, or as to setting off of accounting for the purchase money or any other part thereof instead of paying the same as to the Court may seem reasonable
(3) If two or more persons of whom one is a share-holder in the property, respectively advance the same sum at any bidding at such sale, such bidding shall be deemed to be the bidding of the share-holder.'
6. In my opinion Section 6 contemplates a public sale and not a sale amongst the co-sharers. In this connection the decision in Durgamba v. Sri L. Rice Factory, AIR 1946 Mad 299 may be' referred to. Reading Sections 2 and 6 together it is clear that Section 2 is only applicable if the eqsharer makes a prayer for a public sale. If he makes a prayer for a sale amongst the share-holders then his application cannot be an application under Section 2 of the Partition Act. Consequently Section 3(1) will not apply to such an application. The application of Ram Gopal was therefore rightly rejected.
7. I accordingly dismiss the revision application. In the circumstances of the case, I direct that parties shall bear their own costs.
8. The interim stay order passed on 22-10-1962 is vacated.